Court Rules There Is “No Good Reason” To Prohibit Merrill from Describing the Array of Private Information that the FBI Sweeps Up Using NSLs

NEW HAVEN, CT – A federal district court has ordered the FBI to lift an eleven-year- old gag order imposed on Nicholas Merrill forbidding him from speaking about a National Security Letter (“NSL”) that the FBI served on him in 2004. The ruling marks the first time that an NSL gag order has been lifted in full since the PATRIOT Act vastly expanded the scope of the FBI’s NSL authority in 2001. Mr. Merrill, the executive director of the Calyx Institute, is represented by law students and supervising attorneys of the Media Freedom and Information Access Clinic, a program of Yale Law School’s Abrams Institute for Freedom of Expression and Information Society Project.

For more than a decade, the government has refused to allow Mr. Merrill and other NSL recipients to tell the public just how broadly the FBI has interpreted its authority to surveil individuals’ digital lives in secret using NSLs. Tens of thousands of NSLs are issued by FBI officers every year without a warrant or judicial oversight of any kind.

The letters demand disclosure of user information and are almost always accompanied by complete gag orders. Today’s decision will finally allow Mr. Merrill to speak about all aspects of the NSL and, specifically, to inform the public about the categories of personal information that the FBI believes it can obtain using an NSL.

“For more than a decade, the FBI has fought tooth and nail in order to prevent me from speaking freely about the NSL I received,” said Mr. Merrill. “Judge Marrero’s decision vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives. I hope today’s victory will finally allow Americans to engage in an informed debate about proper the scope of the government’s warrantless surveillance powers.”

U.S. District Judge Victor Marrero’s decision invalidated the gag order in full, finding no “good reason” to prevent Merrill from speaking about any aspect of the NSL, particularly an attachment to the NSL that lists the specific types of “electronic communication transactional records” (“ECTR”) that the FBI believed it was authorized to demand. The FBI has long refused to clarify what kinds of information it sweeps up under the rubric of ECTR, a phrase that appears in the NSL statute but is not publicly defined anywhere.

Judge Marrero’s decision describes the FBI’s position as “extreme and overly broad,” affirming that “Courts cannot, consistent with the First Amendment, simply accept the Government’s assertions that disclosure would implicate and create a risk.” The Court observed that, according to the government, Mr. Merrill would only be allowed to discuss the kinds of records the FBI demanded in “a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment.” The Court decisively rejected this position: “Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people.”

Merrill first challenged the NSL statute in 2004 in a landmark ACLU lawsuit that resulted in significant changes to the law but ended in 2010 with much of the gag order still intact. “Mr. Merrill has fought tirelessly for years to expose the government’s excessive use of gag orders that prevent the American public from having an informed conversation about NSL surveillance. Time and again he has been vindicated in court,” said Amanda Lynch, student director of the Media Freedom and Information Access Clinic. “This decision has once again affirmed the crucial role courts play in serving as an important check on intelligence agencies, defending the Constitution, and protecting the civil liberties of all,” Lynch added.

“Today’s decision will finally allow Mr. Merrill to shed light on the scope of the FBI’s claimed authority under the NSL statute, and to explain how the FBI’s interpretation is deeply problematic and potentially unlawful,” stated Jonathan Manes, supervising attorney in the Media Freedom and Information Access Clinic. “If the recent revelations and debates over mass surveillance have taught us anything, it is that there can be no meaningful democratic oversight if the public does not know how the law has been interpreted behind closed doors,” Manes added.

The Court’s order will go into effect in 90 days. Mr. Merrill will remain gagged for that period, in order to allow the government time to decide whether to appeal the decision.

“Judge Marrero’s careful and comprehensive decision confirms that there is no longer any reason to prevent Mr. Merrill from telling the public what he knows about NSL surveillance,” observed Lulu Pantin The FBI has conceded that the investigation that prompted the 2004 NSL is now closed. Pantin continued, “We hope the government will not appeal, so that a crucial public conversation about warrantless surveillance is not further delayed.”